Public Law and Legal Theory Commons^™

Differentiating Deference, Anya Bernstein

Faculty Scholarship

There is now some consensus that the context of a statutory term plays a crucial part in its meaning.1 The argument continues, however, over what "kinds of context ... matter."2 Building on scholarship that addresses the wide range of contexts that contribute to legal meaning,3 this Article illuminates two factors crucial to interpreting legal language: the social nature of meaning-making and the practical nature of interpretive competence. I locate my inquiry in the judicial review of agency statutory interpretation, a particularly fruitful arena for analyzing statutory interpretation more generally.

To fill the gap, Part I of this Article first illuminates …

Doric Columns Are Not Falling: Wedding Cakes, The Ministerial Exception, And The Public-Private Distinction, James M. Oleske Jr.

Maryland Law Review

No abstract provided.

Parallels In Public And Private Environmental Governance, Sarah E. Light, Eric W. Orts

Michigan Journal of Environmental & Administrative Law

Private actors, including business firms and non-governmental organizations, play an essential role in addressing today’s most serious environmental challenges. Yet scholars have not fully recognized the parallels between public environmental law and the standard-setting and enforcement functions of private environmental governance. “Instrument choice” in environmental law scholarship is generally understood to refer to government actors choosing among options from the public law “toolkit,” which includes prescriptive rules, the creation of property rights, the leveraging of markets, and informational regulation. Each of these major public law tools, however, has a parallel in private environmental governance. This Article first provides a descriptive …

Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley

Michigan Journal of Environmental & Administrative Law

By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. …

Public Trust Doctrine Implications Of Electricity Production, Lance Noel, Jeremy Firestone

Michigan Journal of Environmental & Administrative Law

The public trust doctrine is a powerful legal tool in property law that requires the sovereign, as a trustee, to protect and manage natural resources. Historically, the public trust doctrine has been used in relationship to navigable waterways and wildlife management. Despite electricity production’s impact on those two areas and the comparatively smaller impacts of renewable energy, electricity production has garnered very little public trust doctrine attention. This Article examines how electricity production implicates the public trust doctrine, primarily through the lens of four states—California, Wisconsin, Hawaii, and New Jersey—and how it would potentially apply to each state’s electricity planning …

Foreword: Private And Public Revisited Once Again, Mark A. Graber

Maryland Law Review

No abstract provided.

Taking Turns, Ronen Perry, Tal Z. Zarsky

Florida State University Law Review

No abstract provided.

Drawing (Gad)Flies: Thoughts On The Uses (Or Uselessness) Of Legal Scholarship, Sherman J. Clark

University of Michigan Journal of Law Reform Caveat

In this essay, I argue that law schools should continue to encourage and support wide-ranging legal scholarship, even if much of it does not seem to be of immediate use to the legal profession. I do not emphasize the relatively obvious point that scholarship is a process through which we study the law so that we can ultimately make useful contributions. Here, rather, I make two more-subtle points. First, legal academics ought to question the priorities of the legal profession, rather than merely take those priorities as given. We ought to serve as Socratic gadflies—challenging rather than merely mirroring regnant …

Who Are We?: The Quest For Identity In Law, Colin Jackson, Kim Brooks

Dalhousie Law Journal

Scholars from Haraway to Foucault to Freud, from Bourdieu to Erikson to Scarry have theorized identity across continents and among disciplines. Despite the rich material available, however, interrogations of identity in law have remained isolated within substantive areas of law (those working on identity in evidence law have not necessarily met issue with those exploring identity in constitutional law, for example), and have been more limited in scope and imagination than the interrogations undertaken in other disciplines.

Medicine As A Public Calling, Nicholas Bagley

Michigan Law Review

The debate over how to tame private medical spending tends to pit advocates of government-provided insurance—a single-payer scheme—against those who would prefer to harness market forces to hold down costs. When it is mentioned at all, the possibility of regulating the medical industry as a public utility is brusquely dismissed as anathema to the American regulatory tradition. This dismissiveness, however, rests on a failure to appreciate just how deeply the public utility model shaped health law in the twentieth century— and how it continues to shape health law today. Closer economic regulation of the medical industry may or may not …

Books Received, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

Freedom Of Expression- European Commission Of Human Rights Find That Injunction Against Newspaper Article On Case During Out-Of-Court Negotiations, Upheld By The House Of Lords, Violates Article 10 Of The European Convention For The Protection Of Human Rights And Fundamental Freedoms, Alan S. Peevy

Georgia Journal of International & Comparative Law

No abstract provided.

Foreign Sovereign Immunity- Communist And Socialist Organizations- Effect Of State's System Of Property Ownership On Determination Of Agency Or Instrumentality Status Under The Foreign Sovereign Immunities Act Of 1976, Timothy A. Peterson, Harger W. Hoyt

Georgia Journal of International & Comparative Law

No abstract provided.

Sea Changes And The American Republic, Dean Rusk, Milner S. Ball

Georgia Journal of International & Comparative Law

No abstract provided.

Fairness, Trust And Security In Online Dispute Resolution, Noam Ebner, John Zeleznikow

Journal of Public Law and Policy

No abstract provided.

We Wouldn’T Be Here If It Weren’T For Them: Encouraging Family Caregiving Of Indigent Parents Through Filial Responsibility Laws, Katie Sisaket

Journal of Public Law and Policy

No abstract provided.

On The "Poverty Of Responsibility": A Study Of The History Of Child Protection Law And Jurisprudence In Nova Scotia, Ilana Luther

PhD Dissertations

This thesis presents a history of child protection law and jurisprudence in Nova Scotia. The thesis begins by examining the development of the first child protection statute in Canada, the Nova Scotia Prevention and Punishment of Wrongs to Children Act in 1882. The Act was developed amidst a climate of reform in late-19th century Halifax, at the urging of the Society for the Prevention of Cruelty to Animals. The Act, along with a number of other pieces of “domestic relations” legislation at the time, was focused on protecting children in poverty. With the passing of the Act, the legislature not …

Research On The Prospect Analysis And Countermeasures If China Joins The Bwm Convention, Qinghua Gu

Maritime Safety & Environment Management Dissertations (Dalian)

No abstract provided.

Ballast Water Treatment Systems And Retrofitting Them On Container Ships, Hrishikesh Chatterjee

Maritime Safety & Environment Management Dissertations (Dalian)

No abstract provided.

Dean Rusk Award: "Double Jeopardy" On The High Seas: International Narcotics Traffickers Beware, Richard Lee

Georgia Journal of International & Comparative Law

No abstract provided.

City Growth And Cooperation Along The United States/Mexican Border, Nora M. Tocups

Georgia Journal of International & Comparative Law

No abstract provided.

Urbanization And Public Services, Fredric Stearns

Georgia Journal of International & Comparative Law

No abstract provided.

Symposium: Legal Issues And Urbanization In Developing Countries-Foreward, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

State Public Utility Labor Relations, Donald W. Brodie

Akron Law Review

THE STATE LEVEL public utility commission or comparable regulatory agency (hereinafter referred to as commission) is largely responsible for setting the rates consumers must pay for regulated goods and services and is responsible for monitoring the quality of those goods and services. Labor and labor-related costs may be a significant portion of the rates. In the exercise of its rate and service jurisdiction, the commissions make decisions which will have direct or indirect effects on labor relations. It is the purpose of this paper to examine those effects by reviewing how the commissions treat issues involving labor relations.' The emphasis …

State Public Utility Labor Relations, Donald W. Brodie

Akron Law Review

THE STATE LEVEL public utility commission or comparable regulatory agency (hereinafter referred to as commission) is largely responsible for setting the rates consumers must pay for regulated goods and services and is responsible for monitoring the quality of those goods and services. Labor and labor-related costs may be a significant portion of the rates. In the exercise of its rate and service jurisdiction, the commissions make decisions which will have direct or indirect effects on labor relations. It is the purpose of this paper to examine those effects by reviewing how the commissions treat issues involving labor relations.' The emphasis …

Legal Agreement, Andrew Tutt

Akron Law Review

This Article grapples with the question of what it means to agree about what the law is. First, it shows that the question of what it means to “agree about the law” invites us to consider many different kinds of agreement and disagreement we might have about what the law is. Second, it shows that without selecting one of these kinds of agreement, we cannot speak intelligibly about whether we agree or disagree. Third, it explains that this failure to choose is a source of much confusion and apparent disagreement between competing philosophers and philosophies of law. Fourth, it argues …

Employment At Will And Public Policy, Frank J. Cavico

Akron Law Review

The purposes of this article are to examine the current public policy case law, commentary, and related statutes, to explain and interpret in detail this significant area of employment law, and to propose a just principle to govern the discharge aspect of the employment relation.

Behavioral Public Choice: The Behavioral Paradox Of Government Policy, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Although government agencies increasingly use behavioral irrationalities as a justification for government intervention, the paradox is that these same government policies are also subject to similar behavioral inadequacies across a broad range of policies. This article develops an analysis of behavioral public choice in which we recognize that government officials are human and subject to behavioral anomalies and to public choice incentives that could further lead to welfare-reducing policies. Moreover, the existence of behavioral failures by the general public will lead to public pressures on government agencies to foster policies in response to these behavioral inadequacies. This article presents a …

Ferguson, The Rebellious Law Professor, And The Neoliberal University, Harold A. Mcdougall Iii

School of Law Faculty Publications

Neoliberalism, a business-oriented ideology promoting corporatism, profit-seeking, and elite management, has found its way into the modern American university. As neoliberal ideology envelops university campuses, the idea of law professors as learned academicians and advisors to students as citizens in training, has given way to the concept of professors as brokers of marketable skills with students as consumers. In a legal setting, this concept pushes law students to view their education not as a means to contribute to society and the professional field, but rather as a means to make money. These developments are especially problematic for minority students and …

A Third Theory Of Paternalism, Nicolas Cornell

Michigan Law Review

This Article examines the normative significance of paternalism. That an action, a law, or a policy is paternalistic generally counts against it. This Article considers three reasons why this might be so—that is, three theories about what gives paternalism its normative character. This Article’s claim is that the two most common explanations for paternalism’s negative character are mistaken. The first view, which underlies the recent work by Professors Thaler and Sunstein, maintains that paternalism is negatively charged because it involves coercive interference with people’s choices. This approach proves inadequate, however, because more coercive actions can be a less objectionable form …